The timing of a bankruptcy petition filing is often a carefully calculated decision that a debtor makes to obtain certain protections of the Bankruptcy Code, most notably, the automatic stay, in advance of a looming event. In many cases, a debtor may be close to tripping a covenant, missing a debt payment, or a creditor may be attempting to foreclose on the debtor’s assets. The debtor must be cognizant of the timing of these events as the protections of the Bankruptcy Code only apply after the petition has been filed. In In re Buckskin Realty, Inc, the United States Bankruptcy Court for the Eastern District of New York explained that it would not grant nunc pro tunc relief to deem a bankruptcy petition filed earlier than it actually was when substantive rights would be altered. Where the debtor’s principal argued that he could not file the bankruptcy petition to invoke the automatic stay before the foreclosure sale on the grounds that the subway directions to the courthouse were wrong and caused the delayed filing, the court held excusable neglect and inaccessibility of the clerk’s office could not be used as a means to deem an earlier filing of a bankruptcy petition. Continue reading >>

ABI Chapter 11 Reform Commission Series: Venue and Core and Noncore Matters

January 22, 2015

Today, in the latest installment of our series reviewing the Final Report and Recommendations of the American Bankruptcy Institute Commission to Study the Reform of Chapter 11, we review the Commission’s comments on (i) venue and (ii) core and noncore matters – discussed in sections IX.A and IX.B, respectively. Two topics that – in a […]

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Want to Shop? Don’t Let Bankruptcy Stop You!

January 21, 2015

The automatic stay is a powerful tool of the Bankruptcy Code, affording debtors a breathing spell from creditors seeking payment. Section 362(k)(1) of the Bankruptcy Code reinforces the stay by allowing individual debtors to recover actual and punitive damages for willful violations.

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ABI Chapter 11 Reform Commission Series: Claims Trading

January 20, 2015

As our loyal readers know, the Weil Bankruptcy Blog is running a series of posts discussing the various interesting topics covered in the American Bankruptcy Institute Commission to Study the Reform of Chapter 11 Final Report and Recommendations. In this installment, we cover the Commission’s review of rules relating to claims trading – discussed in […]

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Scheme hot topics

January 16, 2015

As market participants will know, the appeal in the Apcoa II scheme of arrangement settled just before Christmas. While welcome for the players involved, it deprived the market of the clarity of a Court of Appeal judgment on many scheme issues such as jurisdiction, the imposition of new obligations and class composition. In the absence […]

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Postpetition Ratification of Prepetition Stay Waivers – A Possible End Around of the General Prohibition Against Prepetition Waivers of Bankruptcy Rights?

January 15, 2015

“The past can’t hurt you anymore, not unless you let it.” – Alan Moore, V for Vendetta Prior to the commencement of a bankruptcy case, the waiver by a potential debtor of the protections afforded by the Bankruptcy Code is usually found to be unenforceable. As a recent decision of the United States Bankruptcy Court […]

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Drilling Down: A Deeper Look into the Distressed Oil & Gas Industry Part 2—Treatment of Oil and Gas Interests in Bankruptcy

January 14, 2015

Today’s blog article, which looks at the treatment of specific oil and gas property interests in the bankruptcy context, is the second in the Weil Bankruptcy Blog series, “Drilling Down,” where we review issues at the intersection of the oil and gas industry and bankruptcy law. In Part One, we provided an overview of the […]

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